## Facts

- Maureen Hergenreder, a registered nurse, was hired by Bickford Senior Living Group, LLC in late 2006 to work at an assisted-living facility.
- Shortly after hiring, she was diagnosed with cancer and took leave for surgery and recuperation.
- In late December 2006, she was told not to return because the facility had not yet opened and a backup nurse was not needed.
- She was later informed by phone that she was fired; a letter stated her RN status was terminated due to surgery and recuperation time and referenced lack of accrued paid time off or FMLA time.
- In August 2009, she sued under the Americans with Disabilities Act (ADA).
- During onboarding, she signed multiple employment-related forms and a separate acknowledgment stating she received, read, and understood an employee handbook; none of the signed forms contained an arbitration clause.
- The handbook expressly disclaimed contractual force and included only a brief statement directing employees to a separate “Dispute Resolution Procedure” (DRP).
- The DRP (a separate document) required binding arbitration of employment-related claims as a condition of employment and stated that employment or continued employment would bind the employee; the employer also sought a signed DRP acknowledgment.
- The employer could not produce a DRP acknowledgment signed by Hergenreder and relied on generalized testimony about company practice; Hergenreder submitted sworn statements that she never received the DRP, never signed an acknowledgment, and was never told arbitration was a condition of employment.

## Issues

1. Whether the employer proved, under Michigan contract law, the existence of a valid arbitration agreement binding the employee to arbitrate her ADA claim.
2. Whether a handbook acknowledgment and a handbook cross-reference to a separate DRP can establish notice and assent to a mandatory arbitration clause contained only in the separate DRP.
3. Whether continued employment can constitute acceptance of an arbitration policy absent proof the employee had notice of the policy.

## Decision

- The Sixth Circuit reversed the order compelling arbitration and remanded for further proceedings in federal court.
- The court held the employer failed to carry its burden to show the employee had notice of, and manifested assent to, the DRP’s arbitration provision.
- The absence of a signed DRP acknowledgment and the lack of concrete evidence that the DRP was provided to this employee prevented compelling arbitration.
- The handbook acknowledgment did not bind the employee to arbitrate because the handbook disclaimed contractual status and did not set out arbitration terms, merely referring to a separate document the employee denied receiving.
- Continued employment could not operate as acceptance where the employer did not prove the employee was informed of the arbitration requirement.
- The federal policy favoring arbitration did not supply a missing agreement; contract formation principles controlled the threshold question of whether an arbitration agreement existed.

## Legal Principles

- A party may be compelled to arbitrate only if a valid, enforceable agreement to arbitrate exists; formation is governed by ordinary state-law contract rules.
- Under Michigan law, mutual assent requires knowledge of the relevant terms and an objective manifestation of intent to be bound.
- The party seeking to compel arbitration bears the burden of proving the existence of an agreement to arbitrate.
- A non-contractual employee handbook, and an acknowledgment of receipt of such a handbook, generally does not establish assent to a separate arbitration agreement absent proof the employee received and agreed to that separate document.
- Continued employment may indicate acceptance of an arbitration policy only where the employee had notice of the policy before continued employment is treated as assent.
- The Federal Arbitration Act’s pro-arbitration policy favors enforcing existing arbitration agreements and resolving scope doubts, but it does not eliminate the requirement to prove contract formation.

## Conclusion

Because the employer did not present sufficient evidence that the employee received or agreed to the separate arbitration procedure, the Sixth Circuit held there was no enforceable agreement to arbitrate and allowed the ADA claim to proceed in court on remand.


Hergenreder v. Bickford Senior Living Grp., LLC, 656 F.3d 411 (6th Cir. 2011)